II 

Calendar No. 272 

114TH CONGRESS 

1ST SESSION S. 1082 

To amend title 38, United States Code, to provide for the removal or demotion 

of employees of the Department of Veterans Affairs based on performance or misconduct, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

APRIL 23, 2015 

Mr. RUBIO (for himself, Mr. VITTER, Mr. BARRASSO, Mr. TOOMEY, Mr. CASSIDY, Mr. FLAKE, Mr. CORNYN, Mr. HATCH, Mr. JOHNSON, Mr. 

MCCAIN, Mr. BURR, Mr. KIRK, Mr. MORAN, Mr. TILLIS, and Ms. 

AYOTTE) introduced the following bill; which was read twice and referred 

to the Committee on Veterans’ Affairs 

OCTOBER 19, 2015 

Reported by Mr. ISAKSON, with amendments 

[Omit the part struck through and insert the part printed in italic] 

A BILL 

To amend title 38, United States Code, to provide for the 

removal or demotion of employees of the Department 

of Veterans Affairs based on performance or misconduct, 

and for other purposes. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Department of Vet3 erans Affairs Accountability Act of 2015’’. 

4 SEC. 2. REMOVAL OR DEMOTION OF EMPLOYEES BASED ON 

5 PERFORMANCE OR MISCONDUCT. 

6 (a) IN GENERAL.—Chapter 7 of title 38, United 

7 States Code, is amended by adding at the end the fol8 lowing new section: 

9 ‘‘§ 714. Employees: removal or demotion based on 

10 performance or misconduct 

11 ‘‘(a) IN GENERAL.—The Secretary may remove or 

12 demote an individual who is an employee of the Depart13 ment if the Secretary determines the performance or mis14 conduct of the individual warrants such removal or demo15 tion. If the Secretary so removes or demotes such an indi16 vidual, the Secretary may— 

17 ‘‘(1) remove the individual from the civil service 

18 (as defined in section 2101 of title 5); or 

19 ‘‘(2) demote the individual by means of— 

20 ‘‘(A) a reduction in grade for which the in21 dividual is qualified and that the Secretary de22 termines is appropriate; or 

23 ‘‘(B) a reduction in annual rate of pay 

24 that the Secretary determines is appropriate. 

25 ‘‘(a) IN GENERAL.—(1) The Secretary may remove or 

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1 ment if the Secretary determines the performance or mis2 conduct of the individual warrants such removal or demo3 tion. 

4 ‘‘(2) A determination under paragraph (1) that the 

5 performance or misconduct of an individual warrants re6 moval or demotion may consist of a determination of any 

7 of the following: 

8 ‘‘(A) The individual neglected a duty of the posi9 tion in which the individual was employed. 

10 ‘‘(B) The individual engaged in malfeasance. 

11 ‘‘(C) The individual failed to accept a directed 

12 reassignment or to accompany a position in a trans13 fer of function. 

14 ‘‘(D) The individual violated a policy of the De15 partment. 

16 ‘‘(E) The individual violated a provision of law. 

17 ‘‘(F) The individual engaged in insubordination. 

18 ‘‘(G) The individual over prescribed medication. 

19 ‘‘(H) The individual contributed to the purpose20 ful omission of the name of one or more veterans 

21 waiting for health care from an electronic wait list 

22 for a medical facility of the Department. 

23 ‘‘(I) The individual was the supervisor of an em24 ployee of the Department, or was a supervisor of the 

25 supervisor, at any level, who contributed to a purVerDate Sep 11 2014 22:13 Oct 19, 2015 Jkt 059200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6203 E:\BILLS\S1082.RS S1082

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1 poseful omission as described in subparagraph (H) 

2 and knew, or reasonably should have known, that the 

3 employee contributed to such purposeful omission. 

4 ‘‘(J) Such other performance or misconduct as 

5 the Secretary determines warrants the removal or de6 motion of the individual under paragraph (1). 

7 ‘‘(3) If the Secretary removes or demotes an individual 

8 as described in paragraph (1), the Secretary may— 

9 ‘‘(A) remove the individual from the civil service 

10 (as defined in section 2101 of title 5); or 

11 ‘‘(B) demote the individual by means of— 

12 ‘‘(i) a reduction in grade for which the in13 dividual is qualified and that the Secretary de14 termines is appropriate; or 

15 ‘‘(ii) a reduction in annual rate of pay that 

16 the Secretary determines is appropriate. 

17 ‘‘(b) PAY OF CERTAIN DEMOTED INDIVIDUALS.—(1) 

18 Notwithstanding any other provision of law, any individual 

19 subject to a demotion under subsection (a)(2)(A) 

20 (a)(3)(B)(i) shall, beginning on the date of such demotion, 

21 receive the annual rate of pay applicable to such grade. 

22 ‘‘(2) An individual so demoted may not be placed on 

23 administrative leave or any other category of paid leave 

24 during the period during which an appeal (if any) under 

25 this section is ongoing, and may only receive pay if the 


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1 individual reports for duty. If an individual so demoted 

2 does not report for duty, such individual shall not receive 

3 pay or other benefits pursuant to subsection (e)(5). 

4 ‘‘(c) NOTICE TO CONGRESS.—Not later than 30 days 

5 after removing or demoting an individual under subsection 

6 (a), the Secretary shall submit to the Committees on Vet7 erans’ Affairs of the Senate and House of Representatives 

8 notice in writing of such removal or demotion and the rea9 son for such removal or demotion. 

10 ‘‘(d) PROCEDURE.—(1) The procedures under section 

11 7513(b) of title 5 and chapter 43 of such title shall not 

12 apply to a removal or demotion under this section. 

13 ‘‘(2)(A) Subject to subparagraph (B) and subsection 

14 (e), any removal or demotion under subsection (a) may 

15 be appealed to the Merit Systems Protection Board under 

16 section 7701 of title 5. 

17 ‘‘(B) An appeal under subparagraph (A) of a removal 

18 or demotion may only be made if such appeal is made not 

19 later than seven days after the date of such removal or 

20 demotion. 

21 ‘‘(e) EXPEDITED REVIEW BY ADMINISTRATIVE LAW

22 JUDGE.—(1) Upon receipt of an appeal under subsection 

23 (d)(2)(A), the Merit Systems Protection Board shall refer 

24 such appeal to an administrative law judge pursuant to 

25 section 7701(b)(1) of title 5. The administrative law judge 


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1 shall expedite any such appeal under such section and, in 

2 any such case, shall issue a decision not later than 45 days 

3 after the date of the appeal. 

4 ‘‘(2) Notwithstanding any other provision of law, in5 cluding section 7703 of title 5, the decision of an adminis6 trative judge under paragraph (1) shall be final and shall 

7 not be subject to any further appeal. 

8 ‘‘(3) In any case in which the administrative judge 

9 cannot issue a decision in accordance with the 45-day re10 quirement under paragraph (1), the removal or demotion 

11 is final. In such a case, the Merit Systems Protection 

12 Board shall, within 14 days after the date that such re13 moval or demotion is final, submit to Congress and the 

14 Committees on Veterans’ Affairs of the Senate and House 

15 of Representatives a report that explains the reasons why 

16 a decision was not issued in accordance with such require17 ment. 

18 ‘‘(4) The Merit Systems Protection Board or admin19 istrative judge may not stay any removal or demotion 

20 under this section. 

21 ‘‘(5) During the period beginning on the date on 

22 which an individual appeals a removal from the civil serv23 ice under subsection (d) and ending on the date that the 

24 administrative judge issues a final decision on such appeal, 

25 such individual may not receive any pay, awards, bonuses, 


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1 incentives, allowances, differentials, student loan repay2 ments, special payments, or benefits. 

3 ‘‘(6) To the maximum extent practicable, the Sec4 retary shall provide to the Merit Systems Protection 

5 Board, and to any administrative law judge to whom an 

6 appeal under this section is referred, such information and 

7 assistance as may be necessary to ensure an appeal under 

8 this subsection is expedited. 

9 ‘‘(f) WHISTLEBLOWER PROTECTION.—(1) In the case 

10 of an individual seeking corrective action (or on behalf of 

11 whom corrective action is sought) from the Office of Special 

12 Counsel based on an alleged prohibited personnel practice 

13 described in section 2302(b) of title 5, the Secretary may 

14 not remove or demote such individual under subsection (a) 

15 without the approval of the Special Counsel under section 

16 1214(f) of title 5. 

17 ‘‘(2) The Office of Special Counsel shall establish— 

18 ‘‘(A) a mechanism to expedite cases for corrective 

19 action under paragraph (1); and 

20 ‘‘(B) a standard for the approval under para21 graph (1) of removal or demotion under subsection 

22 (a), which may include a determination as to whether 

23 the removal or demotion is a prohibited personnel ac24 tion. 


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1 ‘‘(3)(A) Notwithstanding any other provision of law, 

2 the Special Counsel may terminate an investigation of a 

3 prohibited personnel practice alleged by an individual in 

4 connection with a removal or demotion of the individual 

5 under subsection (a) only after the Special Counsel provides 

6 to the individual a written statement of the reasons for the 

7 termination of the investigation. 

8 ‘‘(B) The written statement provided to the individual 

9 under subparagraph (A) may not be admissible as evidence 

10 in any judicial or administrative proceeding without the 

11 consent of such individual. 

12 ‘‘(f) LIMITATION ON REMOVAL OR DEMOTION.—In 

13 the case of an individual seeking corrective action (or on 

14 behalf of whom corrective action is sought) from the Office 

15 of Special Counsel based on an alleged prohibited per16 sonnel practice described in section 2302(b) of title 5, the 

17 Secretary may not remove or demote such individual 

18 under subsection (a) without the approval of the Special 

19 Counsel under section 1214(f) of title 5. 

20 ‘‘(g) RELATION TO OTHER PROVISIONS OF LAW.— 

21 (1) The authority provided by this section is in addition 

22 to the authority provided by subchapter V of chapter 75 

23 of title 5 and chapter 43 of such title. 

24 ‘‘(2) Subchapter V of chapter 74 of this title shall 

25 not apply to any action under this section. 


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1 ‘‘(h) DEFINITIONS.—In this section: 

2 ‘‘(1) The term ‘individual’ means an individual 

3 occupying a position at the Department of Veterans 

4 Affairs but does not include— 

5 ‘‘(A) an individual, as that term is defined 

6 in section 713(g)(1); or 

7 ‘‘(B) a political appointee. 

8 ‘‘(2) The term ‘grade’ has the meaning given 

9 such term in section 7511(a) of title 5. 

10 ‘‘(3) The term ‘misconduct’ includes neglect of 

11 duty, malfeasance, or failure to accept a directed re12 assignment or to accompany a position in a transfer 

13 of function. 

14 ‘‘(4) The term ‘political appointee’ means an in15 dividual who is— 

16 ‘‘(A) employed in a position described 

17 under sections 5312 through 5316 of title 5, 

18 (relating to the Executive Schedule); 

19 ‘‘(B) is a limited term appointee, limited 

20 emergency appointee, or noncareer appointee in 

21 the Senior Executive Service, as defined under 

22 paragraphs (5), (6), and (7), respectively, of 

23 section 3132(a) of title 5; or 

24 ‘‘(C) is employed in a position of a con25 fidential or policy-determining character under 


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1 schedule C of subpart C of part 213 of title 5 

2 of the Code of Federal Regulations.’’. 

3 (b) CLERICAL AND CONFORMING AMENDMENTS.— 

4 (1) CLERICAL.—The table of sections at the be5 ginning of such chapter is amended by adding at the 

6 end the following new item: 

‘‘714. Employees: removal or demotion based on performance or misconduct.’’. 

7 (2) CONFORMING.—Section 4303(f) of title 5, 

8 United States Code, is amended— 

9 (A) by striking ‘‘or’’ at the end of para10 graph (2); 

11 (B) by striking the period at the end of 

12 paragraph (3) and inserting ‘‘, or’’; and 

13 (C) by adding at the end the following: 

14 ‘‘(4) any removal or demotion under section 

15 714 of title 38.’’. 

16 SEC. 3. REQUIRED PROBATIONARY PERIOD FOR NEW EM17 PLOYEES OF DEPARTMENT OF VETERANS AF18 FAIRS. 

19 (a) IN GENERAL.—Chapter 7 of title 38, United 

20 States Code, as amended by section 2, is further amended 

21 by adding at the end the following new section: 

22 ‘‘§ 715. Probationary period for employees 

23 ‘‘(a) IN GENERAL.—Notwithstanding sections 3321 

24 and 3393(d) of title 5, the appointment of a covered em25 ployee shall become final only after such employee has 


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1 served a probationary period of 540 days. The Secretary 

2 may extend a probationary period under this subsection 

3 at the discretion of the Secretary. 

4 ‘‘(b) COVERED EMPLOYEE.—In this section, the term 

5 ‘covered employee’— 

6 ‘‘(1) means any individual— 

7 ‘‘(A) appointed to a permanent position 

8 within the competitive service at the Depart9 ment; or 

10 ‘‘(B) appointed as a career appointee (as 

11 that term is defined in section 3132(a)(4) of 

12 title 5) within the Senior Executive Service at 

13 the Department; and 

14 ‘‘(2) does not include any individual with a pro15 bationary period prescribed by section 7403 of this 

16 title. 

17 ‘‘(c) PERMANENT HIRES.—Upon the expiration of a 

18 covered employee’s probationary period under subsection 

19 (a), the supervisor of the employee shall determine wheth20 er the appointment becomes final based on regulations 

21 prescribed for such purpose by the Secretary.’’. 

22 (b) APPLICATION.—The amendment made by sub23 section (a) shall apply to any covered employee (as that 

24 term is defined in section 715 of title 38, United States 


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1 Code, as added by such subsection) appointed after the 

2 date of enactment of this section. 

3 (c) CLERICAL AND CONFORMING AMENDMENTS.— 

4 (1) CLERICAL.—The table of sections at the be5 ginning of such chapter, as amended by section 2, 

6 is further amended by adding at the end the fol7 lowing new item: 

‘‘715. Probationary period for employees.’’. 

8 (2) CONFORMING.—Title 5, United States 

9 Code, is amended— 

10 (A) in section 3321(c), by— 

11 (i) striking ‘‘Service or’’ and inserting 

12 ‘‘Service,’’; and 

13 (ii) inserting at the end before the pe14 riod the following: ‘‘, or any individual cov15 ered by section 715 of title 38’’; and 

16 (B) in section 3393(d), by adding at the 

17 end after the period the following: ‘‘The pre18 ceding sentence shall not apply to any indi19 vidual covered by section 715 of title 38.’’. 

20 SEC. 4. COMPTROLLER GENERAL STUDY OF DEPARTMENT 

21 TIME AND SPACE USED FOR LABOR ORGANI22 ZATION ACTIVITY. 

23 (a) STUDY REQUIRED.—Not later than 180 days 

24 after the date of the enactment of this Act, the Comp25 troller General of the United States shall conduct a study 


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1 on the amount of time spent by Department of Veterans 

2 Affairs employees carrying out organizing activities relat3 ing to labor organizations and the amount of space in De4 partment facilities used for such activities. The study shall 

5 include a cost-benefit analysis of the use of such time and 

6 space for such activities. 

7 (b) REPORT TO CONGRESS.—Not later than 90 days 

8 after the completion of the study required under sub9 section (a), the Comptroller General shall submit to the 

10 Committee on Veterans’ Affairs of the Senate and the 

11 Committee on Veterans’ Affairs of the House of Rep12 resentatives a report on the results of the study. 


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Calendar No. 272 

114TH CONGRESS 

1ST SESSION S. 1082 

A BILL 

To amend title 38, United States Code, to provide 

formance or misconduct, and for other purposes. Department of Veterans Affairs based on perfor the removal or demotion of employees of the 

OCTOBER 19, 2015 

Reported with amendments 


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